Wal-Mart, The Supreme Court, and Discrimination II

This is a response the Emily's post on Wal-Mart, The Supreme Court, and Discrimination.


With all due respect to Professor Tanya Hernandez and Emily, I find myself disagreeing with a number of the assertions in both of their arguments.

Professor Tanya Hernadez makes the case that because 1.5 million women felt strongly enough to sue Walmart, one can draw the conclusion that, at the very least, there was something fishy going on at Walmart. If 1.5 million would have gone through the trouble of actually suing Walmart, then indeed there would be a strong intuitive argument to be made that Walmart was generally misbehaving in some way. Of course, I think Prof. Hernadez used some pretty impressive legal shorthand to finesse this point into existence. In a class action lawsuit one must opt out if one falls in the included class. One and a half million women did not actively pursue a case against Walmart, rather the majority of these women simply did not take the proactive steps to opt out. And people wonder why everyone dislikes lawyers.

Emily argues,

I hope I do not need to convince anyone that gender bias still exists today. Women are still generally seen as lacking the characteristics warranting promotion into managerial and higher positions. Women also make $0.77 to the $1 that men make nationwide for full-time, year round work. Women are still required to take on the majority of child rearing and household responsibilities, making it more difficult to work outside the home and/or limit availability. Unless specific criteria are spelled out for those in charge of making pay and promotion decisions, it is likely that unconscious (or even conscious) stereotyping and gender bias will influence those decisions. This is especially the case when the managers who are given this subjective power themselves might not be the most educated and/or unbiased people.

I disagree strongly with the leading premise of the argument. I think it is incredibly important for people making the claim of bias to argue it, and argue it well. We as a culture tend to make the argument that any difference between groups of people has to be attributed to either a)institutional bias or b) societal bias. This leaves out other reasonable options. If we are unwilling to consider inherent differences between the groups and different choices made by those in different groups, we have limited our ability to approach difficult questions with an open mind.

Emily goes on to say that women make 77 percent of what men make. I do not deny this. I would ask her to explain the reasons behind this gap. Here are some reasons I would present to explain this bias: 1) women tend to negotiate less when offered a salary; and starting salaries heavily influence wages at a later date in a career, 2) women are indeed the primary caregivers in our society, meaning that they often take years away from their career, losing momentum and raises; 3) there is a societal expectation for women to work less so as to devote more time to their home lives; and 4) there is gender discrimination.

I will briefly present some criticisms of the statistics behind the Walmart case specifically, and then move on to the more general question of how our society ought to approach wage differentials generally (note: Jeremy being the data-head provided the following information):

1. Richard Drogin, the statistician retained by the Respondents, did not conduct statistical power analysis to determine the minimum detectible effect given the extremely large sample size. With a sample of nearly four million people, it would be difficult not to find significance, even with relatively insubstantial differences between men and women.
2. The “unexplained” wage differentials between hourly male and female Walmart employees generally fell within the typical range of adjusted national gender wage differentials (4.8 to 7.1 percent). Salaried employees were a notable exception. However, when Dr. Drogin included a variable for “job position,” the differential for salaried employees fell between 5.46 and 7.07 percent – well within the adjusted national range. Dr. Drogin argues that this variable should not be included, as it may be tainted due to prior discrimination. While this may be true, failing to include this variable biases the regression in favor of the Respondents, with whom the burden of proof rests.
3. As many of the amicus briefs for the Petitioner noted, regression models using aggregate (rather than store-specific) data assume rather than prove commonality in terms of managerial decision-making. The regression models used by Dr. Drogin also assume additivity, when there could be a number of important interactions among different variables in the equation.. This possible misspecification could upwardly bias the gender coefficients and generate larger “unexplained” wage differential estimates. 

I’m back, and glad Jeremy is so smart. What adds to all of this is that women who actually applied for management positions were hired at a higher rate than their male counterparts. So the question becomes:Is this indicative of a culture of discrimination? I would argue no, and that for this reason a class action suit just doesn’t make sense. If you would like some really enjoyable evidence of why Scalia might be a bastard but really sharp read his back-and-forth with the lawyers representing the class action suit about how Walmart both had an institutional policy of discrimination about promotions in place and how it had no institutional policy regarding promotion at all.

The reason this case makes me cringe is because 20 years ago Anita Hill wasn’t the exception she was the rule. When talking to a woman over 40 about their experiences in the workforce, it makes me cringe to be a man and at all associated with what they went through. I’m not arguing we are in a post-gender bias society. But I am arguing that this is a terrible lawsuit and avoids addressing the questions corporations and society must deal with in our current world.

Which brings us to the real question, what is a corporation like Walmart responsible for when making hiring decisions? I have two examples to clarify this question. If a bright, hard-working, woman were to have religious convictions that her main job was to be a mother and wife and she only wanted to work 20 hours a week, should Walmart be responsible for pushing her to apply for a promotion? I think they clearly should not. If an equally bright, hard-working, woman was unsure whether she should apply for a promotion because she sees mostly men in managerial roles and isn’t sure how she should fit in, does Walmart have a responsibility to have some procedures in place to help her and women like her? I think absolutely they should, for two reasons. First,it behooves Walmart to hire the best people, and this is an untapped resource. Second, we know that in societyas awhole, and corporations individually, we have leftover biases and institutional structures that reflect a not-too-distant discriminatory past. Correcting that ought to be a priority of both society and companies.

Women and men are inherently different. If we attribute all differences to discrimination, we end up making the word lose all meaning. I would ask Emily specifically and feminists generally if they think that women’s much higher college entrance and graduation rates are discrimination based? Do they think it is discrimination that this economic downturn has disproportionately affected men, specifically younger men? I think these are not examples of discrimination, but if we use the criteria that all differences have to be attributed to discrimination, we’re trapped in a pretty terrible loop.

So here’s my challenge going forward. Examine Walmart on the merits of its case. Look at the numbers behind wage differential, and let’s understand why this differential exists. Understanding this, we can have a better idea of what we ought to attempt to change. Let’s not write off arguments like Lawrence Summers’s speech on academia, science, and gender because it presents uncomfortable conclusions. When we choose to willfully ignore that the world is a complex place, we end up at conclusions that are quite simply untrue. There are real questions to be answered here. Should corporations be a part of helping to change societal norms via the roles women play in the corporations? How should we address not only discrimination where we find it (forcefully I hope) but also what to do about the really difficult questions like how to deal with the fact that our culture seemingly socializes girls in a way that inhibits them from achieving the same monetary success as their male counterparts. I’m not arguing against addressing discrimination, I’m arguing that the Walmart case is not perhaps as clear as Emily believes and that the belief that our gender differences are a result of discrimination is counterproductive.

-Bo

Wal-mart, The Supreme Court, and Discrimination

The following is our first guest post at Proportioned Beliefs. Hope you enjoy it.


The Supreme Court's recent decision in the Wal-Mart v. Dukes case brings up so many issues that anger me it’s hard to know where to begin.

First of all, I feel I need to say that I understand the ruling. I have read the 42 page decision, and I get it (as much as someone who didn’t go to law school can). The Court did not have to make a decision about whether Wal-Mart discriminated against anyone; they decided only on a procedural issue as to whether the suit could be brought at all. One decision, about a specific rule of civil procedure, was unanimously decided against the plaintiff, and one more general rule was decided in a 5-4 decision against the plaintiff. (You can find the entire civil procedure rule on class action law suits here.)

The part that there was a disagreement about was Rule 23(a) as a whole:

(a) Prerequisites: One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class

The majority (Justices Antonin Scalia, Clarence Thomas, Samuel Alito, Anthony Kennedy and Chief Justice Roberts) not only said that these prerequisites were not met, but even more, that lawyers who bring a nationwide class action suit against an employer would have to offer strong evidence of a nationwide practice or policy that hurt the class. The idea that 1.5 million women could all have similar enough complaints to meet the criteria for a class action suit is improbable. Furthermore, Justice Scalia stated that the plaintiffs’ claims that individual managers were to blame for the discrimination is “quite unbelievable” over the large geographical scope of the company “without some common direction.” Also, the plaintiffs were arguing that Wal-Mart’s lack of a comprehensive institutional policy is to blame, which is the “opposite,” Scalia continued, of what is needed to bring a class action claim. So, basically because it’s unlikely and the contrary to the way the law is written, it’s not due class action status and therefore this suite is not due a real trail.

The unanimous part of the decision was that Rule 23(b)(2) was not satisfied: “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” There is a difference in criteria for a class action suit that seeks back pay and one that seeks injunctive or declaratory relief. This means that cases looking for money are individualized based on the plaintiff’s specific grievances (more specific criteria, harder to prove), while cases seeking a company policy change are based on similar collective complaints (fewer criteria, easier to prove). The lawyers for the plaintiff were organized under the injunctive relief criteria, but were seeking back pay. I get it, understood, stupid plaintiff lawyers.

Another issue that Scalia stressed is that grievances that result in many class action law suits should be dealt with not in the courts but within the workplace, by “professionals.” It is in my understanding that the entire point of this case (and of these kinds of suits in general) is because of an inherent impossibility of that to actually happen fairly. Especially for large, national corporations, the individual worker has very little power and can be easily dismissed, fired, or forced out. Wal-Mart, the majority of whose employees come from the mostly uneducated working poor or lower classes have even less to work with. Labor unions were created to pool the powers of individual workers to achieve certain goals (like workplace safety, wage increases, benefits, and discrimination disputes). Wal-Mart, shockingly enough, has an anti-union policy, or what they like to call “pro associate policy.” Any grievances an employee might have are dealt with mostly by direct supervisors, probably the person who committed the discriminatory act in the first place. If the employee managed to move his or her grievance up the ladder, it might be dealt with by someone who has an even bigger paycheck from Wal-Mart with which to gamble. Therefore, class action law suits are one of the few tools at the disposal of any Wal-Mart employee who feel they were discriminated against. But now the Supreme Court has made it even harder for class action suits to be brought against a national (multi-national) company because wronged parties now must claim, and prove, institutional discriminatory policy. As I’ve heard said, first we were told some companies were too big to fail, now some companies are too big to sue.

So why don’t these 1.5 million women just break off into smaller, more manageable groups that can prove discrimination on a regional or even store specific scale. Have you read/seen A Civil Action? If you haven’t, you should. Lawyers put up the cash for civil suits. This makes them seem like money hungry parasites because they only get paid if they win, and the amount they get paid in based on how much they win. However, this is the only way employees, especially the poor and lower class ones, are going to be able to take on a billion dollar company with an army’s worth of (well paid) lawyers. Arguing more, smaller cases will raise the cost (which the Wal-Mart side can afford) and therefore make fewer lawyers willing or able to take the case on behalf of marginalized employees. Also, this extra criterion for a class action suit that Scalia wrote into the decision makes it even harder to prove class action status and again, lawyer are less likely to take these cases.

And now the part that got me interested in the first place: THIS IS GENDER DISCRIMINATION. I have been reminded that no court has ruled that Wal-Mart indeed discriminated against women, and while that might be true, I have a hard time giving Wal-Mart (regardless of my many other issues with the company) the benefit of the doubt. Professor Tanya Hernandez of the Fordham University School of Law said it best in the New York Times: “[T]he vast number of female employees who sought to be certified as a single class for purposes of filing the lawsuit because they were similarly underpaid and not promoted to management positions in vastly disproportionate rates compared with their male colleagues is a testament to the need for a large-scale scrutiny of Wal-Mart’s corporate culture and practices that could so systematically subordinate its female employees.” Wal-Mart might not have a nationwide policy of gender discrimination, but the testimony given by the plaintiff shows that their publicized policy of manager discretion in pay and promotion fosters the continued “influence of subjective unconscious bias.”

I hope I do not need to convince anyone that gender bias still exists today. Women are still generally seen as lacking the characteristics warranting promotion into managerial and higher positions. Women also make $0.77 to the $1 that men make nationwide for full-time, year round work. Women are still required to take on the majority of child rearing and household responsibilities, making it more difficult to work outside the home and/or limit availability. Unless specific criteria are spelled out for those in charge of making pay and promotion decisions, it is likely that unconscious (or even conscious) stereotyping and gender bias will influence those decisions. This is especially the case when the managers who are given this subjective power themselves might not be the most educated and/or unbiased people.

In terms of the law, there are two ways one can go about combating this discrimination (as Professor Richard Primus of the University of Michigan clearly explains in the New York Times). The first is on a specific case-by-case basis involving individuals and their actions. The other is on a broader, institutional, societal scale. Just like the distinction between a class action suit claiming monetary rewards vs. injunctive relief, the first kind of antidiscrimination case requires more criteria be met to prove wrongdoing. The courts pushed theWal-Mart v. Dukes case into the more criteria necessary kind of case, also saying that all subsequent cases should as well. This makes the courts a hard place to institute any kind of legal change to discrimination issues, which leaves us with the Legislative Branch (because that’s going so well these days). The Lilly Ledbetter Fair Pay Act, showed that Congress is necessary in getting real changes made for workers’ rights. That is unlikely to happen again until the Republicans and their fat checks from big-business get tossed back down to the minority.

And the bottom line in all this? Wal-Mart is no worse for the wear. However, these women, 1.5 million of them, are still, almost unequivocally, shit of out of luck.

-Emily

Lead Poisoning, Crime, and the Media

A few days ago on Real Time with Bill Maher, Rick Lazzio was discussing crime trends in the United States, which appear to be declining in spite of the poor economy. Maher pointed to research linking violent crime to childhood lead exposure, and suggested that simple remedies like removing lead from paint and gasoline can sometimes have profound effects on certain kinds of social problems.

I think there is some truth to Maher’s comments, but I would also argue that it’s extremely difficult to measure these kinds of things accurately.

The study that Maher is referring to was popularized by a 2007 article in the Washington Post examining then-Republican presidential hopeful Rudy Guliani’s record of crime reduction in New York City. The author, Shankar Vedantam, cited evidence by economist Rick Nevin which seems to show that “lead poisoning accounts for much of the variation in violent crime in the United States.”

I’ve been thinking a lot lately about how research findings are reported in the media, and I’ve come to believe that journalists have a responsibility to discuss the potential limitations of various methodological approaches. This article is a case in point.

Nevin’s study relies on time-series regression models, which explain national crime rates as a function of the blood lead content rate in preschoolers. Looking at various industrialized countries, he shows that “the violent crime rate tracks lead poisoning levels two decades earlier” in virtually every instance.

I find this conclusion very appealing, but the research design strikes me as problematic for two reasons.

First, lots of factors are associated across time. In fact, the key problem with time series analysis is that you almost always find highly significant relationships with large coefficients of determination. When I was doing research on joblessness a few months back, for example, I came across this study showing that the (lagged) frequency of certain kinds of Google keyword searchers explains about 89 percent of the variation in German unemployment. That’s pretty astounding, but no one in their right mind would assert that keyword searchers actually cause unemployment. This relationship probably holds in almost every industrialized country, and we may even find similar lag times. None of this means that Google is killing jobs.

Second, even if Nevin relied on cross-sectional data, there are some important confounding factors that he probably couldn’t capture very well. In particular, it’s likely that some measure of social responsibility may explain at least part of the relationship between lead poisoning and crime rates. Heightened levels of social responsibility could lead to public calls for lead removal from various products. This same change in the social mindset could lead to more responsible parenting, which would likely lead to lower rates of crime about 20 years later when males are most likely to become violent offenders. Finding a proxy for “social responsibility” is pretty difficult, and Nevin doesn’t seem to control for this at all in his study.

The general point here is that inferring causality is difficult, and most studies have drawbacks that really need to be highlighted. I don’t expect every journalist to become an expert on research design, but I do think that it’s incumbent upon them to know something about the limitations of the specific research they’re summarizing for the public. Peer-review doesn’t guarantee a flawless study.

Maybe I'm putting too much blame on journalists, but I suspect the public might be a little less cynical about seemingly contradictory research findings if they had a better idea of how reserach is conducted, and at least some understanding of how we actually "know" the things we think we know.

On Bibi, Tactics, and Strategy

A lot of smart people have very different views on Israel. As long as those people are acting in good faith, acknowledging that other peoples’ disagreements with a position aren’t (always) due to a lack of humanity or intelligence, then this should not be a cause for alarm. What bothers me is that this nation that has a lot of wonderful things going for it (technology, education, and economic growth) has a major tactical blindspot, its need for an independent Palestine.

Jeffrey Goldberg, an American Jewish writer who tends to be lean somewhat right on the issue of Israel, makes some excellent points in a recent op-ed. He argues that Bibi, in his rousing speech to congress, continued down a path that could very well lead to the fall of Israel as a Jewish-democratic nation (which is a really dramatic way to say that the status quo is not going to work forever)

The goal of Netanyahu on his recent trip here seems to have been to score political points. And in the United States he was certainly successful. The irony of all of this that the UN vote on Palestinian independence is slated to come up soon and it will most likely pass the General Assembly. The only thing standing between it’s ratification (or official support, really the U.N. ratifies stuff right?) is the U.S.’ veto on the Security Council. Bibi in a short amount of time will have scored political points at Obama’s expense and then will rely on him to avoid a condemnation of Israel’s policy in regards to Palestine by the international community.

I acknowledge that Netanyahu masterfully executed his tactic of charming AIPAC and Congress. Here is my, and Goldberg’s, question for supporters of a democratic, Jewish, Israel: do you agree not only with Bibi’s recent tactics but also what those tactics imply about his overall strategy?

It seems pretty clear that you have to choose between an independent Palestine, or an Israel that is not both democratic and Jewish. What I mean by this is simply that the demographics of Israel, which claims the West Bank and Gaza, are problematic. Obama, in his speech at AIPAC argued,

The number of Palestinians living west of the Jordan River is growing rapidly and fundamentally reshaping the demographic realities of both Israel and the Palestinian territories…This will make it harder and harder, without a peace deal, to maintain Israel as both a Jewish state and a democratic state.

Goldberg goes onto explain that if Israel continues A) its expansion and B) It’s claim on the West Bank and Gaza it will be the minority populace by 2017. Assuming he’s right, and I’m treating him as an expert as he doesn’t cite demographic information, then this leaves Israel in a pretty untenable place. Either there’s a segment of the population in Israel that doesn’t vote or the Jewish people of Israel are a minority in this democracy.

The reason this line of argumentation is intriguing to me is that it is fundamentally pro-Israel while at the same time being against Israel’s current strategy in regards to Palestine. The reality seems to be that Bibi is winning battles in a political war that leads to untenable choices. By spurning Obama he certainly appeals to large segments of both the American and Israeli populations, but loses an opportunity to move towards the only viable solution to the problems facing Israel, a Palestinian state. 

-Bo